Mediation in Family Law Cases
Questions to ask yourself when considering
1. Is the divorce is an amicable one? (You are not likely
visiting our website if it is.)
2. Do you feel you are a skilled
3. Do you feel there is a balance of power between you and
4. Do you know the motivations of the mediator you have chosen
5. Can you stand up to pressure from your ex, a mediator, and
your ex's attorney?
6. Are you aware of your rights?
7. Was your
relationship free of domestic violence?
8. Is your former mate a fit
9. Do you have experience in the work and financial world which
provides you a more level playing field in negotiations?
If you can not answer "yes" to all of these questions,
mediation may not be for you.
If you feel you are a good candidate for mediation,
here are some reasons why mediation can be a good route to consider:
The mediator is supposed to remain neutral between the
husband and the wife. That means the mediator can't give advice to either
party, and also doesn't act as a lawyer or therapist for either party.
The mediator may be able point out to both spouses things
that each of them should be aware of about what they're trying to
accomplish. Because both spouses are working with the same base of
information, it usually takes far less time to negotiate a resolution that
makes sense to both spouses.
You may have your attorney present at mediation if you
choose to, or you can use your lawyer as an advisor between sessions. This
is a decision that is strictly up to you.
Mediation should be voluntary. It continues only for so long
as all three of you - you, your spouse, and the mediator -- want it to.
You or your spouse can withdraw from mediation at any time, for a good
reason, a bad reason, or no reason at all.
Mediating couples may be more likely to be satisfied with
the process and the results, take less time and spend less money, and be
less likely to go back to court later.
The main advantage of mediation is that it keeps you and
your spouse in control of your own divorce. That can make all the
difference in your recovering from your divorce, moving on with your life
and maintaining your financial assets. Mediation allows the two of you to
get through your divorce with less conflict than you would experience in
an adversarial divorce.
If you are not a good candidate for mediation, be
aware of the following:
Mediation should be voluntary, so feel free to opt out
unless you find the court has stepped in and made it involuntary. Should
you still choose to attempt mediation even though you do not meet the
criteria of a "good candidate" or are forced to mediate against your will;
here are some things you should be aware of:
Remember, the goal of a mediator is to come to a conclusion
as quickly as possible…to make a deal. There is a lot of pressure on the
parties to settle. If the parents can't agree, the mediator may make the
decisions. We are aware of mediators that use coercion, bullying tactics,
fear and other damaging methods in order to force an agreement. The
mediator is not there to come up with a "fair" agreement, or to come up
with one that considers your children's or your best interests. They are
there to simply obtain an agreement.
It is far too easy to "negotiate" away your legal rights in
mediation because a mediator isn't there to tell you what your legal
rights are. Some attorneys have been able to successfully raise
consitutional issues on the grounds that mandatory mediation violates the
6th amendment--the right to counsel. Even if attorneys are allowed
to participate, by definition, mediation seeks to limit the attorney's
Be aware of your state statutes in regards to mediation and
domestic violence. Many states have laws on the books that prohibit
domestic violence victims from having to participate in mediation. You
would be amazed at how many victims' own attorneys do not know or do not
disclose these statutes to their clients.
Be aware of your state statutes in regards to mediation and
confidentiality. In most instances, what happens during mediation is
confidential, unless you sign an agreement. A signed agreement can then be
produced in court by your opposition. We are aware, however, of states
that do not provide such confidentiality, and of mediators that take
sides, label one party uncooperative/unreasonable/unstable/uncommunicative
and actually write reports to the court.
If you are forced to attend involuntary mediation, keep your
emotions in check. Know your bottom line and do not cave in to the
pressure. Prepare for your own use a starting point and a bottom line to
guide you. Judges often look at who is being "cooperative" and who is not.
At least be able to show that you attended the session and participated in
some meaningful way.
Be aware of the mediator's motivations and background.
Mediators can be anyone-- accountants, therapists, psychologists,
attorneys, even Christian fundamentalists with a goal of saving marriages.
Know who you are dealing with. Ask about any potential conflicts of
interest-do they know your ex, have business relationships with your ex's
attorney, etc. Mediators do not have to be lawyers; they may or may not be
covered by licensing laws. Generally, anyone could put up a shingle and be
If you have been a domestic violence victim and have been
forced into or have agreed willingly to mediation, consider asking the
mediator to use the "caucus" style of mediation. This entails having the
parties in separate rooms and the mediator moving from room to room to
facilitate agreement. Be aware, that this type of mediation is generally
doomed to fail.
Parents rarely enter divorce in a situation of balanced
power. Women, particularly those that have not been in the work-world, do
not come into mediation with the same sets of skills and experiences as
their former mate, which puts them at a distinct disadvantage. Mothers
typically see custody and visitation as their most important issues, and
have a tendency to "give away the farm" when it comes to the finances in
order to retain primary parenting of their children.
Finally, we do not advise mediation unless you can answer
"yes" to ALL of the questions at the top of this article, and even then,
proceed with caution and awareness. If you have been forced into
mandatory mediation against your wishes, we recommend you consult with an
attorney prior to entering into mediation. Particularly, review state
statutes that may be contrary to mandatory mediation for domestic violence
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